JUDGMENT : Heard learned counsel appearing on behalf of the petitioner and learned A.P.P appearing on behalf of the State as well as learned counsel appearing on behalf of the O.P. No. 2, the informant. 2. The present petition has been filed for quashing the orders dated 21.08.2021 and 28.10.2021 passed by the I/C Chief Judicial Magistrate, Sasaram whereby and whereunder cognizance has been taken against the petitioner under Sections 419, 420, 467, 468, 471, 409, 34 of the Indian Penal Code. 3. The prosecution case as per F.I.R is that sole filing and P.C.C construction work was to be executed under 14th Finance Commission Head from the house of Chandan to the house of Esriti Sonkar under Parishad Plan No. 12/2019-20 in Ward No. 24 but without executing any work, the estimated cost of Rs. 7,23,824/- of the said plan has been siphoned off by the petitioner being Executive Officer, in connievance with the Chief Councilor and the Junior Engineer, Mahanth Pandey. It is further alleged that accused persons have siphoned off the amount by making forged signature of the informant on the measurement book and physical works completion certificate, who was appointed as Inspector-cum-Technical Officer and he was assigned to inspect the work on regular basis and monitor the progress as per estimate. 4. After registration of the F.I.R, the police started investigation and after thoroughly examining the evidence of the informant, examining the witnesses, inspecting the place, supervision report and report of Superintendent of Police, found the case true as against the petitioner and submitted charge-sheet. 5. The learned Court below, after submission of the charge-sheet against the other accused persons took cognizance vide order dated 21.08.2021 and after submission of the charge-sheet against the petitioner, reiterated the same and took cognizance against the petitioner vide order dated 28.10.2021 for the offences under Sections 419, 420, 409, 467, 468, 471, 34 of the Indian Penal Code. 6. The learned Court below, after submission of the charge-sheet against the other accused persons took cognizance vide order dated 21.08.2021 and after submission of the charge-sheet against the petitioner, reiterated the same and took cognizance against the petitioner vide order dated 28.10.2021 for the offences under Sections 419, 420, 409, 467, 468, 471, 34 of the Indian Penal Code. 6. It is submitted by learned counsel for the petitioner that the empowered Standing Committee, Nagar Parishad, Sasaram under the Chairmanship of Chief Councilor/Chairman Kanchan Devi had taken a decision to execute the said work vide its resolution dated 10.12.2019 and since the work was to be carried out at the level of department itself, as per the decision of the empowered Standing Committee, Mahanth Pandey, Junior Engineer was appointed as Executive Agency and thereafter Mahanth Pandey prepared the estimate of the said work. After preparation of the estimate of work, the informant Jitendra Kumar, Assistant Engineer, BUIDCO, Rohtas had granted technical approval to the estimate of work and as per decision of the empowered Standing Committee, the work order was issued in favour of Mahanth Pandey, Junior Engineer. The empowered Standing Committee had also appointed the informant as Inspector-cum-Technical Officer and he was assigned the duty to inspect the work on regular basis and monitor the progress as per estimate. The Mahanth Pandey, Junior Engineer, thereafter submitted measurement book showing that the work has been completed. The informant being Assistant Engineer and appointed as Inspector-cum-Technical Officer has also submitted the work completion report. The Chief Councilor has also made approval for payment to Mahanth Pandey, Junior Engineer. Hence, the petitioner being Executive Officer, Nagar Parishad had no option but to make payment to Mahanth Pandey. 7. Learned counsel further contends that the petitioner being Executive Officer has not been authorized under the provisions of the Bihar Municipal Act, 2007 to make physical verification of every scheme of the municipality and he has to act upon on the basis of materials available on record. In the present case, the petitioner, after verifying the measurement book, work completion report and the approval of Chief Councilor had made payment to the departmental contractor ie. Mahanth Pandey, Junior Engineer. 8. In the present case, the petitioner, after verifying the measurement book, work completion report and the approval of Chief Councilor had made payment to the departmental contractor ie. Mahanth Pandey, Junior Engineer. 8. It is further submitted by learned counsel for the petitioner that sanction of the government to prosecute a government servant for an act related to the discharge of an official duty is imperative to protect the government servant from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government to prosecute, would give a confidence to the government servant to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action from which he would be protected under Section 197 of the Cr.PC. But in the present case, without taking any approval or sanction from the parent department of the petitioner, the police started investigating the matter and submitted charge-sheet against the petitioner and thereafter, learned Court below has also taken cognizance without verifying any approval/sanction from the competent authorities as provided under Section 197 of the Cr.P.C. 9. Learned counsel appearing on behalf of O.P. No. 2 and learned A.P.P appearing on behalf of the State have argued that whether sanction was necessary or not would have to be determined in course of trial. An order of Magistrate taking cognizance of the offence was not amenable to challenge under Section 482 of Cr.P.C. Charge-sheet has already been submitted against the petitioner. 10. Having examined the rival submissions and the averments made by both the parties, this Court finds that for execution of the work in question, Mahant Pandey was appointed as departmental contractor vide order contained in memo No. 663 dated 12.02.2020 (Annexure-5) and thereafter an agreement was executed between the petitioner and the contractor on 12.02.2020 (Annexure-5(i)) wherein Mahant Pandey, departmental contractor has specifically mentioned that in case of any discrepancy in the execution of work, he will take the whole responsibility. The Assistant Engineer (informant) who was appointed to make technical supervision of the said work has also inspected the place of work, found the work satisfactory, recommended for payment to the contractor and issued completion certificate under his signature on 20.03.2020 (Annexure-5(ii)). 11. The Assistant Engineer (informant) who was appointed to make technical supervision of the said work has also inspected the place of work, found the work satisfactory, recommended for payment to the contractor and issued completion certificate under his signature on 20.03.2020 (Annexure-5(ii)). 11. It would be proper to mention here that vide para 166 of the case diary which was written on 19.08.2021, the specimen signature of the informant was sent to the Forensic Science Laboratory, Patna for verification. However, charge-sheet has been submitted without receiving the report of the F.S.L and thereafter cognizance has also been taken. This is a considerable point that informant lodged the present F.I.R alleging that his signature on the measurement book and work completion certificate (Annexure-5) is false but during investigation, this fact could not be crystal clear in absence of F.S.L report in respect of challenged signature of the informant. 12. For ready reference, Section 27(A) (B) of the Bihar Municipal Act, 2007 read as under:- [27-A. Powers and functions of the Chief Councillor.-(1) The Chief Councillor shall head the Empowered Standing Committee and all the executive powers of the Municipality shall vest in the Empowered Standing Committee. The municipal administration shall function under its supervision and control and the Chief Councillor shall exercise such powers and functions as are delegated to him by the Empowered Standing Committee and conferred on him by or under this Act. (2) The Chief Councillor shall preside over the meetings of the Empowered Standing Committee as well as the Board of Councillors (3) Determine the matters to be discussed at a meeting of the Empowered Standing Committee as well as the Board of Councillors and circulate to the members of the Empowered Standing Committee as well as the Board of Councillors, as the case may be, in such manner as the Chief Councillor may determine. (4) The Chief Councillor shall, if he is of the opinion that in exceptional circumstance, immediate execution of any work is necessary and the same ordinarily requires the approval of the Board of Councillors or the Empowered Standing Committee, as the case may be, may direct the execution of such work. (4) The Chief Councillor shall, if he is of the opinion that in exceptional circumstance, immediate execution of any work is necessary and the same ordinarily requires the approval of the Board of Councillors or the Empowered Standing Committee, as the case may be, may direct the execution of such work. Provided that the Chief Councillor shall report forthwith but not later than fifteen days, to the Board of Councillors or the Empowered Standing Committee, as the case may be, the actions taken under this Section and the reasons there of [27-B. Power and function of Chief Municipal Officer.-(1) The Chief Municipal Officer shall be the Principal Executive Officer of the Municipality and all officers and other employees of the Municipality shall be subordinate to him. Powers of transfers & posting & disciplinary action against all officers and staff appointed by him under Sec. 38 of this Act shall vest in the Chief Municipal Officer. (2) Subject to the supervision and control of the Empowered Standing Committee, and the provisions of this Act and of any Rules and Bye-laws made there under, executive functions for carrying on the administration of the municipality shall vest in the Chief Municipal Officer. (3) He shall be present at the meeting of the Board of Councillors, Empowered Standing Committee or of any committee except meetings convened for the purpose of considering the question of withdrawal of his service by the State Government and he shall have the right to make a statement or to explain facts, but he shall not vote for or against or make any proposition at such meeting. (4) Power, functions and duties delegated by the Municipality, the Empowered Standing Committee and under the provisions of this Act to the Chief Municipal Officer shall be exercised, discharged and performed by the Chief Municipal Officer (5) Subject to provisions of this Act and Rules made under this Act, the Chief Municipal Officer may delegate any of his powers, duties and functions under this Act and any Rules and Bye-laws made there under to any officer subordinate to him. (6) The Chief Municipal Officer shall carry into effect every resolution of the Empowered Standing Committee or the Board of Councillor or of any Committee of the Municipality which is in conformity with provisions of law unless such resolution is set aside or suspended under this Act by the appropriate authority. (6) The Chief Municipal Officer shall carry into effect every resolution of the Empowered Standing Committee or the Board of Councillor or of any Committee of the Municipality which is in conformity with provisions of law unless such resolution is set aside or suspended under this Act by the appropriate authority. (7) In the case of absence of the Chief Municipal Officer for any reason, the powers of the Chief Municipal Officer as specified in the foregoing provisions of this section or elsewhere in this Act or the Rules made under this Act, shall be exercised by any officer of the Municipality as may be nominated by the Chief Councillor in this behalf till such time State Govt. makes a substitute arrangement.” 13. The petitioner has limited power to supervise the construction work as the power and function of the Chief Executive Officer under the Bihar Municipal Act, 2007 has specifically been defined in Section 27(B) read with Sub-Clause 6 which specifically defines that the Chief Municipal Officer shall carry into effect every resolution of the empowered Standing Committee or the Board of Councilors or any Committee of the Municipality which is in conformity with the provisions of law, unless such resolution is set aside or suspended under this Act by the appropriate authorities and under Section 27(A) of the Bihar Municipal Act, 2007, the power and function of the Chief Councilor has duly been mentioned which specifically says that the municipal administration shall function under its supervision and control and the Chief Councilor shall exercise such powers and functions as are delegated to him by the empowered Standing Committee. 14. The Hon'ble Patna High Court in its judgment and order passed in C.W.J.C. No. 4662 of 2017 has specifically laid down that "the Executive Officer" is only a public servant deputed to the Nagar Parishad and he has to execute every decision taken by the Urban Local Bodies which consists Chairman, Standing Committee and the Board and if the same is not followed, the same will amount in subordination making him open to disciplinary proceedings. Paragraph No. 7 of the judgment reads as under:- "7. Before parting with the order, the Court would only observe that in terms of the constitutional and statutory requirements, the Urban Local Bodies, including the Nagar Parishad, are autonomous Bodies and have complete control over their functioning and with regard to taking decisions independently. Paragraph No. 7 of the judgment reads as under:- "7. Before parting with the order, the Court would only observe that in terms of the constitutional and statutory requirements, the Urban Local Bodies, including the Nagar Parishad, are autonomous Bodies and have complete control over their functioning and with regard to taking decisions independently. The Executive Officer is only a public servant deputed to the Nagar Parishad for the purposes of facilitating the functioning and execution of the decisions taken which has to be in terms of the requirement of law by completing certain formalities. The Executive Officer may point out to the Body of the Nagar Parishad with regard to his opinion relating to issues and decisions taken, but beyond that he does not have any other authority to interfere or impede, either in the decisions or its implementation. Such act may amount to insubordination making him open to disciplinary proceedings. The Court thus expects that the respondent no. 2 would sensitize such officers deputed to Urban Local Bodies not only to be loyal to the Body to which they have been deputed but also act as a facilitator towards implementation of the decisions of the concerned Urban Local Bodies by not only giving correct advise, but also ensuring that all legal formalities of which he is supposed to be aware of, are completed expeditiously and the decisions implemented. He shall also ensure that the officers so deputed are sensitized to respect the elected members and the Urban Local Bodies which, should be reflected from his conduct, and that he is obliged to attend each and every meeting convened of the concerned Urban Local Bodies, along with all relevant records which may be required or called for." 15. He shall also ensure that the officers so deputed are sensitized to respect the elected members and the Urban Local Bodies which, should be reflected from his conduct, and that he is obliged to attend each and every meeting convened of the concerned Urban Local Bodies, along with all relevant records which may be required or called for." 15. This Court is of the considered view that the whole action of lodging F.I.R, investigating the matter and submitting charge-sheet against the petitioner in the present case has been made in complete violation of specific direction issued by the State Government (Home Department, Government of Bihar) vide letter No. 6211 dated 09.06.2008 (Annexure-3) in which it has specifically been directed that in any circumstance, before lodging an F.I.R or criminal case against the Officers and Staffs of the State Government, the same shall be made only after consultation with the concerned Department and final decision will be taken by the Head of the concerned Department who will decide whether the alleged action amounts to initiation of departmental or criminal proceeding. However, in the present case, without any consultation or any approval from the parent Department of the petitioner, the F.I.R has been lodged, investigation has been started and charge-sheet has been submitted and thereafter cognizance has also been taken and not at any stage, any consultation, approval, sanction was obtained from the parent Department of the petitioner. Hence, the criminal prosecution as against the petitioner is wholly without jurisdiction and not sustainable in the eyes of law. 16. Sanction to prosecute is to be taken before filing a complaint or F.I.R. According to Section 197 Cr.P.C, two conditions are to be fulfilled. (i) accused should be a public servant that too removable from office either by the Union Government or the State Government and (ii) such public servant has been made an accused of an offence alleged to have been committed while acting or purporting to act in discharge of his official duty. 17. (i) accused should be a public servant that too removable from office either by the Union Government or the State Government and (ii) such public servant has been made an accused of an offence alleged to have been committed while acting or purporting to act in discharge of his official duty. 17. The police has also not made any investigation or collected any evidence which suggests that the petitioner as an Executive Officer is responsible for any omission and commission in discharge of his official duties by issuing cheques in favour of departmental contractor specially when the said payment has been made after receiving the measurement book, work completion certificate, approval of the Chairman and decision of the Standing Committee. 18. The orders of cognizance dated 21.08.2021 and 28.10.2021 read as under:- “21.08.2021.- I.O of this case has submitted Charge-sheet for the offence u/s- against the accused person noted in the column no-11 of the charge-sheet as showing supplementary investigation is going on against the accused persons-1. Kumari Himani & 2. Mahanth Pandey. Seen and perused the case record, charge-sheet, case diary and other relevant paper available on record u/s 173 of Cr.P.C. It appears that a primafacie case is made out for the offence u/s.- 419/420/467/468/471/409/34 of I.P.C against the accused person noted in column no. 11 of charge-sheet. Accordingly, cognizance is taken for the offence u/s- 419/ 420/ 467/ 468/ 471/ 409/34 of I.P.C against the accused person noted in the column no. 11 of charge sheet. O/C is directed to open a supplementary case record against whom investigation is going on. Let the case record be kept in own file for trial & disposal. 28.10.2021-I.O of this case has submitted Charge-sheet for the offence u/s-419/420/467/468/471/409/34of I.P.C against the accused person noted in the column no.-11 of the charge-sheet as showing supplementary investigation is going on against the accused persons- Mahanth Pandey. Seen and perused the case record, charge-sheet, case diary and other relevant paper available on record u/s 173 of Cr.P.C. It appears that a primafacie case is made out for the offence u/s.- 419/420/467/468/471/409/34 of I.P.C against the accused person noted in column no. 11 of charge-sheet. Cognizance has already been taken on 21.08.2021. O/C is directed to open a supplementary case record against whom investigation is going on. Let the case record be kept in own file for trial & disposal. 19. 11 of charge-sheet. Cognizance has already been taken on 21.08.2021. O/C is directed to open a supplementary case record against whom investigation is going on. Let the case record be kept in own file for trial & disposal. 19. Having bestowed to the above two cognizance orders, learned Trial Court has not applied judicial mind and discussed the factual basis due to which he has taken cognizance of the offence in this case. He has not explained the evidence in respect of this petitioner which may be the basis of the cognizance order. 20. It has been observed by the learned Apex Court in the case of D. Devaraja versus Owais Sabeer Hussain reported in (2020) 7 SCC 695 . The relevant paragraphs of the judgment reads as under:- "30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bihari (AIR p. 48, para 15) "15...........Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard.......... There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction." 32. In Amrik Singh vs State of PEPSU this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown, H.H.B. Gill v. King Emperor and the judgment of the Privy Council in Gill v. R and held:(Amrik Singh case, AIR p312. No one can take such proceedings without such sanction." 32. In Amrik Singh vs State of PEPSU this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown, H.H.B. Gill v. King Emperor and the judgment of the Privy Council in Gill v. R and held:(Amrik Singh case, AIR p312. para 8) The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties: but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. 35. In State of Orissa v. Ganesh Chandra Jew this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty. 53. This Court in Virupakshappa case held that the whole allegation of police excess in connection with the investigation of the criminal case, was reasonably connected with the performance of the official duty of the appellant. The learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government. This Court found that the High Court had missed this crucial point in passing the impugned order, dismissing the application of the policeman concerned under Section 482 of the Code of Criminal Procedure. 61. The learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government. This Court found that the High Court had missed this crucial point in passing the impugned order, dismissing the application of the policeman concerned under Section 482 of the Code of Criminal Procedure. 61. In Om Prakash v. State of Jharkhand this Court held: (SCC pp. 90- 91 & 95, paras 34 & 42-43) In Matajog Dobey the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of above quoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh because Sulaiman, J. has observed in the said Judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that: (Matajog Dobey case, AIR p.49, para 20) 20..... the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings. The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings. The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence established that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground. 66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate Government. 71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act. 74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceeding which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court. 77. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court. 77. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the court to take cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge." 21. The statutory provisions as well as the judicial pronouncements, have established that if any act is done by any public servant in discharging their official duty and that act falls in the purview of an offence, in that case, sanction is a mandatory provision for the protection of public servant. It is well recognized principle of law that sanction is a legal requirement that empowers the court to take cognizance so far as the public servant is concerned, if at all the sanction is an absolute requirement. If the court takes cognizance without it, it becomes illegal. Therefore, an order to overcome any illegality, the duty of the court is that even at any subsequent stage, if the question of sanction is raised, the court shall consider it. 22. As far as petitioner is concerned, the impugned order of the cognizance is also void in law in view of the admitted position that no sanction as provided under Section 197 Cr.P.C has been taken before taking cognizance of the offence against the petitioner which is the requirement of law as the charges and allegations as alleged against the petitioner is related with official duty and is alleged to have been committed during course of discharging the official duties. The Hon’ble Apex Court in D. Devraja versus Owais Sabir Hussain reported in (2020) 7 SCC 695 has laid down the principle of law that provision of sanction as provided under Section 197 Cr.P.C is sine qua non, if the charges and allegations are related with the official discharge of duties. 23. The contentions raised on behalf of the informant/O.P. No. 2 as well as learned A.P.P for the State are devoid of any merit. 24. Having considered the facts and circumstances of the case, the orders dated 21.08.2021 and 28.10.2021 passed by the I/C Chief Judicial Magistrate, Sasaram whereby and whereunder cognizance has been taken under Sections 419, 420, 467, 468, 471, 409, 34 of the Indian Penal Code, so far as petitioner is concerned, is hereby quashed. 25. The application stands allowed.